|Susan Farbstein & Tyler Giannini|
|Susan Farbstein & Tyler Giannini|
Guest Post by Professor Oona Hathaway
|Kiobel plaintiffs on
February 28, 2012.
Amnesty International USA
On the face of it, the re-argument of Kiobel v. Royal Dutch Shell is about whether the Alien Tort Statute (ATS) applies to conduct that occurs outside the geographic borders of the United States. But behind this surface issue are two deeper concerns that are really motivating the debate—concerns that, when examined closely, turn out to be misplaced.
The first is a worry that the U.S. courts will become the courts of the world. The U.S. is alone, the argument goes, in allowing individuals harmed by human rights abuses to sue those responsible. Moreover, the ATS allows aliens to sue defendants that have no connection to the United States for conduct that happened outside the United States. Clearly, then, allowing this case to proceed will open the floodgates!
Nothing could be further from the truth. The U.S. is one of many countries—including the Netherlands, the home of Royal Dutch Shell—that provides for the enforcement of international human rights law in its courts. Indeed, in preparing our supplemental amicus brief for re-argument, the Yale Law School Center for Global Legal Challenges gathered a large number of foreign cases, statutes, and constitutions that expressly provide for such enforcement. The United States is in good company.
Moreover, there are a variety of doctrines that already exist to keep cases out of U.S. courts if they belong elsewhere. These include personal jurisdiction, forum non conveniens, act of state doctrine, and exhaustion. Indeed, under personal jurisdiction doctrine, foreign defendants are subject to suit in U.S. courts only if they have sufficient contacts with the United States. Royal Dutch Shell, which does extensive business in the United States, so clearly meets this test (as the ubiquitous Shell gas stations attest) that it did not even raise the issue below.
A second, and related, concern motivating the debate is a worry that the United States is improperly imposing U.S. law abroad. The background presumption against extraterritorial application of U.S. law can be understood as an effort to respect the sovereignty of other states: Foreign states should have the freedom to regulate behavior within their own geographic boundaries, hence U.S. courts should not apply U.S. law to conduct abroad unless Congress expressly so provides. That is because doing so risks imposing distinctive U.S. law to conduct that is more appropriately regulated by the state in which the conduct occurs.
Yet this does not apply in this case or any other ATS case. The plaintiffs are not asking the Supreme Court to apply distinctive U.S. law to conduct that occurred abroad. They are asking U.S. courts to enforce international law—including the prohibition on torture, crimes against humanity, and extrajudicial killing—that the country in which the conduct occurred has itself accepted (if not always honored).
The ATS does not supply substantive rules that govern conduct abroad. Instead it simply provides for the enforcement of existing international law norms. International law makes clear that each state has the sovereign prerogative to do just this—to determine when and how to enforce international law. Indeed, a foundational principle of international law known as the Lotus principle provides that, in the absence of a specific prohibitive rule, “every State remains free to adopt the principles which it regards as best and most suitable.”
In 1789, the First U.S. Congress decided to allow aliens victimized by a violation of international law to seek civil redress in U.S. courts. No Congress in the more than 200 years since has revisited this decision. The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.
The United States Supreme Court term that starts Monday is packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice. According to a report released today by the Alliance for Justice “the majority on the court is likely to live down to its full potential,” says AFJ President Nan Aron.
As we celebrate Voter Registration Day, an effort to involve civic groups, media, and voters across the country, nationwide voter suppression efforts threaten the ability of millions of Americans to participate in the upcoming election. Two cases involving voter suppression efforts were decided this Monday: a federal judge in Florida gave a green light to Governor Rick Scott’s plan to cut back early voting, while a New Hampshire judge struck down a law that targeted college students seeking to vote in the state.
Governor Scott’s move to limit early voting is widely seen as a partisan effort, since early voters have heavily skewed toward the Democratic Party, especially for President Obama in 2008. Cutting back early voting is especially burdensome for students and minorities, who have less access to polling booths, and turn out in larger numbers during the early vote period. In 2008, Governor Charlie Crist, at the time a Republican, was attacked by his own party for extending early voting hours to accommodate the historic turnout in the election. The Florida law in question specifically ends early voting on the Sunday before Election Day, which saw particularly heavy minority voter turnout in 2008. Despite this history and the federal court decisions blocking other provisions of Florida’s voter suppression laws, Judge Timothy Corrigan of the Middle District of Florida found insufficient evidence that the reduction of early voting from 14 to 8 days would “impermissibly burden the right of African Americans to vote.” Judge Corrigan was appointed to the federal bench by President George W. Bush.
The New Hampshire Civil Liberties Union and League of Women Voters found more success in New Hampshire, where Strafford County Superior Court Judge John Lewis blocked a law that would prevent out-of-state students from voting in New Hampshire, where they attend college and live for most of the year. This law would require all voters agree to register a car and obtain a state drivers’ license, which is limited only to those who intend to reside in New Hampshire indefinitely or permanently. The law was enacted by the Republican-dominated state legislature over the veto of Governor John Lynch (D-NH). Speaker of the House Bill O’Brien explained that students were “basically doing what I did when I was a kid and foolish, voting as a liberal.”